P.R. Gokulakrishnan, J.
1. This revision petition arises out of an order refusing to permit the petitioner to amend the plaint and the plan attached thereto. The petitioner herein who is the plaintiff in O.S. No. 153 of 1969 filed the said suit for declaring the plaintiff's right to drain wash water of the kitchen and bath room and rain water falling from the eaves of his house through the vent towards east through the drain, for restraining the defendant, his men, heirs and assigns etc., from interfering with and disturbing in any manner the peaceful enjoyment of the said right by means of a permanent injunction and for directing the defendant to remove the obstruction to the vent on the east and in case the defendant fails to comply with the decree, the same may be removed by Court and the defendant may be made liable for the expenses. Along with the plaint, the petitioner herein filed a plan showing the location of the respective houses of the parties and the vent alleged in the plaint. The trial Court decreed the suit as prayed for. Aggrieved by the decision of the trial Court, the respondent herein preferred A.S. No. 53 of 1973, on the file of the Additional Sub-Court, Erode. While that matter was being argued, the plaintiff', that is the petitioner herein, thought it necessary to amend the plaint since the description of the plaintiff's property and also the plan drawn are not in accordance with the actual state of affairs. It is the case of the plaintiff in the petition for amendment that his house does not extend upto the north to south road on the west and that in between the north-south road on the west and his house, there is a lane and building belonging to one Sengoda Mudaliar. Even the Commissioner appointed by the trial Court points out this mistake. The Commissioner has also filed his plan and report. No objection was taken by the petitioner herein at that time. Nevertheless he has come forward by way of a petition to amend, in I.A. No. 143 of 1973 in A.S. No. 53 of 1973, praying to amend paragraph 4 of the plaint and read the first sentence as follows:
The plaintiff's house is shown as A B C D bounded on the west by the house of one Sengoda Mudaliar and common passage.
It is also prayed that the plaint plans also may be suitably amended. The said petition was contested by the respondent herein stating that it is too late in the day for the plaintiff to amend the plaint, that since the plaintiff has not objected to the Commissioner's plan, he cannot be allowed to overcome the same by way of amendment as prayed for now and that such an amendment will be in the nature of putting up a new case which in all material particulars contradicts the original case put up by the plaintiff.
2. The Additional Subordinate Judge, Erode, observing that such an amendment will involve various other complications and also affect the veracity of the defendant's allegation and also will complicate matters, in that, if the amendment is allowed, naturally the rebuttal pleadings pertaining to this aspect of the case would have to be amended and in that case fresh evidence might have to be let in and fresh issues also might crop up for decision, dismissed the petition. Aggrieved by the said decision, the plaintiff-petitioner has come forward with the abovesaid revision petition.
3. I have been taken through the pleadings in this case and also the affidavit in support of the amendment application ; It is patently clear that the plaint plan does not indicate the correct topography of the plaintiff's house, inasmuch as the Commissioner, in his report, has clearly stated that ABCX portion in his plan belongs to third party, and not to the plaintiff. If that is the state of affairs, a mistake has crept in the plan filed by the plaintiff inadvertently. Such a mistake, in the interests of justice, has to be allowed to be rectified lest the party has to suffer on account of a patent mistake committed by him in the plan attached to the plaint. No doubt, the present amendment goes against the Commissioner's plan in respect of the portion A B C D alleged to be that of the plaintiff in the Commissioner's plan. The plaintiff, by way of amendment, wants to make out that his house portion does not at all touch the mud road on the west. It is always open to the plaintiff to substantiate his contention by way of amendment if he genuinely has a grievance as to the correctness of the plan he has submitted along with the plaint. The Commissioner's plan and report, to a certain extent, go to support the plaintiff's allegation in the application to amend the plaint, though they do not support the plaintiff to the fullest extent. Relying on the report of the Commissioner and also the state of affairs, the learned Counsel for the petitioner submits that the Court below has failed to exercise the jurisdiction vested in it in law under Order 6, Rule 17, Civil Procedure Code.
4. Thiru Palaniswarni, the learned Counsel for the respondent, opposed the application for amendment on the ground that the plaintiff had these facts when he filed the plaint and that inasmuch as he has failed to mention the exact boundaries in his plaint, he should not be allowed to amend the plaint and the plaint plan at the appellate stage. The learned Counsel cited a number of decisions to support his contention.
5. In Subraya, Bhatta v. Govinda Bhat : (1949)2MLJ421 , the High Court set aside an order allowing amendment made by the lower Court. There, it was held that no doubt subsequent events would give the right to the plaintiff to have the plaint amended, but if he had the facts at the time of filing the plaint and failed to state them originally in the plaint, he cannot be allowed to amend the plaint later. I do not think the facts in that decision are similar to those in the present case, and the principles therein can govern the case on hand. Here is a case where the plaintiff has misstated the real state of affairs and inadvertently filed a plan not revealing the real state of affairs; and having come to know the patent mistake, he wants to correct himself so that justice may be rendered to the respective parties. It cannot be said that new facts are being stated by the plaintiff at the appellate stage by way of amendment. On the other hand, real facts are sought to be stated for the purpose of helping the Court to render justice to the parties concerned.
6. The other cases relied on are Mt Lachmin v. Bhaircn Baksh Singh , G. Mc-Kenzie and Company v. Tatanlal Surajmall A.I.R. 1935 Pat 463 and Ramsaran Mandar v. Mahabir Sahu . The Ouah High Court held:
The amendments allowed were undoubtedly very drastic and changed the nature of the suit inasmuch as the allegations on which the claim was based were not only changed but contradictory allegations Were put in their place and therefore could not be allowed.
To the same effect, are the other two decisions above referred to. I do not think the present case comes under the observations above extracted. There is absolutely no question of changing the nature of the suit or putting contradictory allegations by way of the amendment. In the present case, as far as the vent through which water has to be let out, is concerned, the case has not been changed excepting seeking to correct the western boundary of the plaintiff's property.
7. Thiru Palaniswami next cited Jaini Brothers and Company v. Shankar Lal A.I.R. 1938 Lah. 270, which lays down as to when the High Court can, under Section 115, Civil Procedure Code, interfere with an order passed by the lower Court under Order 6, Rule 17, Civil Procedure Code.
8. In Apurba Krishna v. Ram Bahadur : AIR1936Pat191 , the High Court refused to interfere in revision with regard to the discretion used by the trial Court which refused to amend, the plaint adding interest pendenle lite. 'The facts are distinguishable and the decision cannot apply to the present case. Order 6, Rule 17, Civil Procedure Code, states:
The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
The Court below has not properly exercised the discretion vested in it by law under Order 6, Rule 17, Civil Procedure Code. The basis on which it refused the amendment is that the application for amendment was highly belated and it was likely to cause great prejudice to the defendant in his defence and such an amendment would also complicate the matter, in that, if the amendment were allowed, naturally the rebuttal pleadings pertaining to this aspect of the case would have to be amended and in that case fresh evidence might have to be let in and fresh issues also might crop up for decision. The Court cannot shirk its duties because by amendment the pleadings have to be amended and fresh evidence has to be let in. The predominant interest of the Court should be to render justice and allow amendment for such purposes in order to determine the real question in controversy between the parties. From the facts of the case it is clear that the amendment is necessary in the interests of justice and also to determine the real question in controversy between the parties. There is absolutely no question of a contradictory case being sought to be set up by the plaintiff by way of the amendment, nor has he sought to change the cause of action thereby. Thus it is clear that the Court below has failed to exercise the power vested in it by law under Order 6, Rule 17, Civil Procedure Code.
9. In these circumstances, the Civil Revision Petition is allowed. No costs.